Justice Kennedy was very active in today's argument. He asked the
second question, advancing a theme to which he repeatedly returned:
that the first clause of the Second Amendment merely was a
"reaffirmation" of the Constitution's militia clauses, and suggested
that the first clause did not limit the distinct right to keep and bear
arms (which he referred to as the "operative clause"), which was
unconnected -- he used the phrase "quite independent" -- from militia
service. Kennedy expressed the view that the Second Amendment was a
"supplement to" the militia clauses. Kennedy also returned several
times to the 1689 English Bill of Rights as the model for the Second
Amendment. Kennedy also indicated that he does not put a lot of stake
in the Court's opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment.
This is a good sign, and I agree with Kennedy that Miller opinion does not fully elaborate the interests encompassed by the 2nd Amendment? How could it, when only one side of the argument was heard?
I think Kennedy's comments can be taken as foreshadowing a lengthy opinion that will attempt to fully elaborate those interests, as well as a positive sign about which way the decision will likely go.